written evidence from the british union for the abolition of vivisection

8/2/2019 Written Evidence From the British Union for the Abolition of Vivisection

1/10

FOI53Written evidence from the British Union for the Abolition of

Vivisection

Post-Legislative Scrutiny of the Freedom of Information Act 2000

Introduction

1. The BUAV is an anti-vivisection organisation. It has made reasonably extensive use ofthe Freedom of Information Act 2000 (FOIA), with mixed results. Among the public

authorities of which it has made requests are: the Home Office (the regulator of animal

experiments), various universities, the Medicines and Healthcare products Regulatory

Agency and the Veterinary Medicines Directorate.

2. The reasons the BUAV uses FOIA reflect the policy underpinning the Act identified bythe Ministry of Justice Memorandum: to inform public debate (on a contentious issue); to

increase the accountability of public authorities; and to improve decision-making. An

important aspect of accountability is ensuring that the Home Office is regulating animal

experiments in a lawful manner particularly important given that animals in

laboratories, self-evidently, cannot whistleblow.

3. Animal experiments are conducted in conditions of considerable secrecy. Section 24Animal (Scientific Procedures) Act 1986 (ASPA) makes it in an offence, punishable by

two years imprisonment and/or an unlimited fine, for a minster or official to disclose,

even to Parliament, information which a researcher prefers to be kept secret even

information about his or her wrongdoing.1

4. There are some sources of publicly available information about animal experiments: The Home Office publishes statistics each year, but although they are reasonably

comprehensive they have been widely criticised, including by a House of Lords select

1 See the Court of Appeal decision inBUAV v the Home Office and the Information Commissioner[2008]

EWCA Civ 870. The Court of Appeal ruled that it was entirely for the provider of information whether he gaveit in confidence. The law of confidence under which information about wrongdoing or other information

which in the public interest needed to be made available had no relevance

1


2/10

FOI53committee and the Home Secretarys advisory body,

2and are no substitute for

detailed information about particular experiments.

The Home Office encourages (but does not require) licence applicants to prepare ashort abstract (summary) of their application; these are then published under the

Home Offices FOIA publication scheme. These, too, are no substitute for detailed

information. They often read like PR documents, designed to persuade the public of

the value of the research in question, and playing down animal suffering. The

Information Tribunal, in a case brought by the BUAV (the abstracts case), described

five abstracts it was able to compare with the licences they were purporting to

summarise as positive spin, with little said about what was to happen to the

animals.3

Successive opinion polls show that, unsurprisingly, it is the suffering of the

animals with which the public is most concerned.

Some animal research is published, but only a minority. Even when it is, researchersgenerally give no more information about what the animals experienced than is

strictly necessary to understand the research. Little information is given about

consideration given to the use of non-animal alternatives (a statutory requirement).4

5. The litmus test for any transparency regime is whether it is able to shed light on areas ofpublic policy which are controversial. Animal experiments remain acutely controversial,

with public opinion divided and shifting according to the latest aspect to hit the headlines.

Controversy extends to scientific efficacy as well as to ethical considerations and there

are therefore vital human health issues at stake. Public surveys confirm that the public,

irrespective of their views about animal experiments, want to have more information. For

example, a survey by YouGov in 2009 on behalf of the BUAV in the UK, France,

Germany, the Czech Republic, Sweden and Italy5

asked whether the then proposed new

EU directive on animal experiments should require that all information about animal

experiments be publicly available, except information which is confidential and

information which would identify researchers or where they work. 80% of respondents

thought it should.

2 The Animal Procedures Committee3

EA/2007/0059: see paragraph 84 Section 5(5) ASPA5 Fieldwork was undertaken between 24th February - 4th March 2009

2


3/10

FOI53The exception for confidential and identifying information is important. There are, of course,

exemptions in FOIA covering these.6

The BUAV always says that information it requests can be

provided in anonymised form.

6. The Information Tribunal 7 in another case brought by the BUAV 8 recognised theimportance of transparency in this area:

Substantially for the reasons relied on by BUAV, we consider there can be no doubt

about the strong public interest in animal welfare and in transparency and

accountability as regards animal experimentation conducted under the ASPA regime.

The existence of the statutory controls operated by the Home Office does not annul

this interest which extends to seeing how, and the extent to which, the statutory systemis working in practice. Such private scrutiny as takes place inside the statutory system

is not a substitute for well-informed public scrutiny. In the present case these interests

are further underline by the fact that the research was supported by public funds

Mr Justice Eady made similar comments on appeal in the abstracts case. He suggested

there should be a presumption that licence applications should be open with confidential

information separated out.9

7.

In addition to FOIA, the BUAV has made extensive use of EC Regulation 1049/2001.This is similar to FOIA, except that there are far fewer exemptions. The regulation covers

documents held by any of the EU institutions. The BUAVs experience is that it is far

easier, and quicker, to get documents under this regulation that it is to get information

under FOIA. This is despite the general perception that the EU is a secretive body.

8. This submission will address two issues only: the cost of compliance exemption; andaspects of internal reviews.

Cost of compliance

Background

6 Those in sections 38 (health and safety), 40 (data protection), 41 (information provided in confidence

information) and 43 (trade secrets and commercial interests)7

Now called the First-tier Tribunal (Information Rights)8BUAV v Information Commissioner and Newcastle of University EA/2010/0064 paragraph 529Home Office v BUAV and Information Commissioner[2008] EWHC 892 (QB) at para 61

3


4/10

FOI539. Section 12 of FOIA says that a public authority does not have to comply with a request

for information where it estimates that the cost of compliance would exceed the

appropriate limit. The Secretary of State is given regulation-making powers to

determine the appropriate limit and the costs which can be taken into account. The current

regulations are The Freedom of Information and Data Protection (Appropriate Limit and

Fees) Regulations 2004 (the Fees Regulations).10

The appropriate limit is currently 600

(or 24 hours) for central government and 450 (or 18 hours) for other public authorities.

10.The High Court in the recent case ofThe Chief Constable of South Yorkshire vInformation Commissioner

11decided that the reg 4(3) of the Fees Regulations, which

lists the activities which can be taken into account when a public authority estimateswhether the appropriate limit will be reached, does not allow the inclusion of time spent

considering whether an exemption applies (including reading time), internal discussions

and deciding on redactions. This might be termed thinking time. Only what might be

termed physical time, such as that spent locating and retrieving the requested

information, can be taken into account. This had indeed been the approach of the

Information Tribunal in three cases, including the one under appeal.

The Ministry of Justice memorandum

11.The Memorandum discusses the cost of compliance in Section H. It says that publicauthorities largely favour reform, either by reducing the appropriate limits or including

thinking time. It refers to the recommendation of the report by Frontier Economics in

2006 that thinking time should be taken account, although an agreed methodology would

be needed. The Memorandum records that the Constitutional Affairs Committee (CAC)

rejected the recommendation

12

and that the Government agreed with it.

12.The Memorandum also records that the total cost to public authorities of responding toFOIA requests is around 40m per annum. This excludes opportunity costs caused by

the need to divert (presumably non-FoI) staff from their day job. The MoJ has

commissioned a comprehensive study into the time spent by a range of public authorities

on FOIA requests. It hopes to provide the results to the Committee early in 2012.

10

SI 2004 No 324411 [2011] EWHC 44 (Admin)12http://www.publications.parliament.uk/pa/cm200607/cmselect/cmconst/415/415.pdf

4


5/10

FOI53Analysis

13.The BUAV believes it is of central importance that thinking time continues to beexcluded from the cost of compliance. The exclusion is found in regulations, and the

empowering provision - section 12 FOIA - is, linguistically at least, sufficiently broad to

permit its removal. The Secretary of State could therefore remove it at the stroke of a pen

with no meaningful parliamentary scrutiny. For this reason, it is, with respect, important

that Committee addresses the issue and confirms the recommendation of its predecessor

that the exclusion be maintained.

14.The arguments pointing to retention may be summarised as follows:i. Removal would seriously circumscribe the right to information which FOIA creates.

In the Chief Constable of South Yorkshire case, the Tribunal had cautioned:

It is also clear from the time limits in the Fees Regulations [18 hours and 24

hours depending on the public authority], that if it covered the time cost of

redactions, in addition to the tasks listed in regulation 4(3), many, if not most,requests involving exemptions, particularly multiple exemptions, could be

refused. This ..., in our view, could not have been the legislative intent.

In the High Court Mr Justice Keith agreed:13

if the time spent redacting information which is exempt from disclosure is

included in the calculation, I suspect that the appropriate limit would be

exceeded very much sooner than anyone could have intended

In other words, removal of the exclusion would in practice result in a substantive

change of legislative policy, not merely a change of detail about hours. Parliament

chose to include as many as 24 exemptions in FOIA. Some, such as that relating to

personal information (section 40: data protection), are extremely convoluted and

require consideration of separate, complicated legislation. Others, such as information

provided in confidence (section 41), appear straightforward on their face but

incorporate other areas of law including a mass of recent and difficult caselaw.

13 Para 26

5


6/10

FOI53Parliament cannot have intended to give with one hand the right to information

but then to take away with the other because of the inevitable need to spend time

considering whether one or more exemptions apply (irrespective of whether in fact

they do).

For obvious reasons, detailed or complex information would be particularly

vulnerable to such a de facto change in legislative policy.

The CAC recognised that, the more contentious a request, the more time is likely to

be spent considering it:14

We conclude that the proposed regime could result in public authorities

avoiding answers to embarrassing, contentious or high-profile cases as the

number of internal consultees rises in proportion to the sensitivity of

particular requests.

The result, inevitably, would be that requests in contentious areas where the need

for public scrutiny is likely to be strong - could easily be rejected.

ii. There is another important aspect to this. The focus in the Memorandum is on thetime spent by employees of public authorities. But cost in the Fees Regulations also

extends to legal advice. Public authorities, quite properly, do take legal advice

(including external advice) about the applicability of exemptions in difficult cases. It

hardly needs pointing out that the appropriate limits of 450 or 600 would be

reached very quickly were legal advice sought.

iii.

It is very difficult to see how thinking time could be assessed in any objective,consistent way. Some people read quickly, some less quickly. Whether an exemption

applies should not depend on the lottery of whether a request comes before a slow

reader or a quick reader. Similarly, some FoI officers will be more conscientious than

others in considering the exemptions. The more conscientious an officer is, the more

likely the request would fail an expanded section 12 test. In some cases an almost

limitless amount of time considering caselaw could be spent. The length of a

document cannot be determinative it may be much more difficult to decide whether

14 Para 37

6


7/10

FOI53an exemption applies with a short document than with a much longer one. Would time

thinking about a request in the bath be allowed? If not, why not? The Frontier

Economics report acknowledged the need for an agreed methodology, but devising

one would be seriously problematical if not impossible.

iv. It would be too easy for a public authority which did not want to disclose particularinformation to invoke the cost of compliance if thinking time were included. Public

authorities should, of course, approach their task in an objective manner, disinterested

as to whether application of the FOIA tests leads to disclosure or non-disclosure. The

reality, sadly, is different. Ministers may become involved with controversial requests

and politics therefore enter the fray. There is a widespread belief that the Cabinet

Office is determined not to release information about Cabinet discussions about the

Iraq War, for example.

With animal experiments, the BUAV has had the very strong impression - necessarily

not capable of proof - that some public authorities faced with requests for certain

types of information start from the premise that the information will not be disclosed

and then get their lawyers to come up with supporting arguments. Newcastle

University, in the case referred to above, strongly resisted the BUAVs request for

information in two project licences despite the fact that the researchers had

voluntarily published the research. This is how the Information Tribunal described

one of the Universitys major arguments that it did not (for technical legal reasons)

hold any information relating to the very extensive animal research it conducted:

[The BUAVs advocate] submitted that the result for which the University

contended was an affront to common-sense. He submitted it would be

remarkable if the University did not hold important information aboutextensive animal research carried out on its premises by its employees, for

which it received the funds, for which it provided the facilities, the training,

the ancillary staff, the drugs, the routine equipment and the necessary

insurances, in respect of which the University owed duties of care to

safeguard employees and the local community from biosecurity risks, in

respect of which the University claimed intellectual property rights, and for

which its Registrar acted as the certificate holder representing the governing

body and protecting the interests of the University. We agree , and consider

the common-sense answer to be the correct one on the facts of this case

7


8/10

FOI53The Newcastle example shows the length to which some public authorities may go to

hide behind legal arguments, however unmeritorious, so that they do not have to

disclose information. Whether suspicions of bad faith are warranted in a particular

case is not the point. The very fact that suspicion exists undermines confidence in the

working of FOIA. Allowing thinking time to be included would increase suspicion

that public authorities could easily dispose of any request that they did not want to

meet.

Newcastle initially, in fact, relied on section 12, despite at the same time arguing that

other exemptions applied to all the information requested if it was confident that

everything was exempt, how could it project that it would need to spend over 18 hoursdealing with the request? The opportunity to misuse section 12 would be all the

greater were thinking time to be included. Simply instructing external lawyers as

Newcastle did would guarantee the appropriate limit being reached.

v. 40m pa the annual average cost of meeting FOIA requests - seems a very smallsum to pay for improved governance and accountability. Only a part of that sum, of

course, is attributable to time-consuming requests.

Conclusion

15.Lord Bingham said in the House of Lords case ofR (Animal Defenders International) vSecretary of State for Culture, Media and Sport:

15

The fundamental rationale of the democratic process is that if competing

views, opinions and policies were publicly debated and exposed to public

scrutiny the good will, over time, drive out the bad and the true prevail of thefalse.

Axiomatically, informed public debate and scrutiny cannot take place unless the public

has access to relevant information. The more contentious the issue, the more important

that there is access, so that the good can drive out the bad and the true prevail over the

false.

15 [2008] UKHL 15 at 28

8


9/10

FOI5316.The MoJ Memorandum in its discussion of the section 12 issue betrays a disappointing

reluctance to acknowledge the importance of transparency the benefit side of a

cost:benefit assessment. Everything is seen through the prism of burden on public

authorities. Staff are diverted from their day job when in fact it should be part of the

day job of any public sector employee to assist in meeting FOIA requests when called

upon to do so.

17.The Coalition Agreement says: The Government believes that we need to throw open thedoors of public bodies, to enable the public to hold politicians and public bodies to

account.16

Allowing thinking time to be taken into account would have the opposite

effect.

18.If it were felt that some lessening of the burden on public authorities is needed, it shouldbe limited to a small reduction in the 18 and 24 hour limits spent on physical activities.

Internal Reviews

19.Before a disappointed requester can make a complaint to the Commissioner, he must firstask for an internal review by the public authority. There is nothing objectionable in

principle about this. However, reviews must be robust and conducted as quickly as

possible.

a) Independence20.In the BUAVs experience, reviews are generally not sufficiently robust. With the vast

majority of our requests, the reviewer simply confirms the original decision. A corporateview appears to be taken. On one occasion the reviewer admitted to having had

discussions with the original decision-maker (who was at a more senior rank than him).

We note that the Memorandum says 17 that, with central government, only 9% of internal

reviews resulted in the original decision being overturned. 16% of internal review

decisions were overturned in full by the Commissioner. In broad terms that means 25% of

16

http://www.general-election-2010.co.uk/full-conservative-and-liberal-democrat-coalition-government-agreement/election-2010-coalition-government-government-transparency17 Para 146

9


10/10

FOI53

10

original decisions were wrong (plus those identified as incorrect on a successful appeal by

a requester to the Information Tribunal).

21.An aspect of independence is that the reviewer should not be involved with the policyarea in question. In the BUAV Newcastle case, it emerged that the reviewer, the

University Registrar, was also the certificate of designation holder under ASPA the

person in charge of all animal experiments at the establishment. It is obvious that he

should not have been making FOIA decisions relating to animal experiments.

22.The select committee may wish to underline the importance of the reviewer being trulyindependent, both of the original decision-maker and of personnel in the policy area in

question.

b) Double review

23.Some public authorities, such as Newcastle University and Imperial College, London,have a two-stage review. This adds to the delays which are already endemic in the

process. A two-stage review would appear to be unlawful. There is no suggestion in the

section on complaints procedures in the Code of Practice issued by the Secretary of State

under section 45 FOIA18

that a two-stage review is contemplated indeed, paragraphs 39

and 46 clearly contemplate a single stage only. There is no rationale for a public authority

to consider a request no fewer than three times before a requester is able to obtain a truly

independent adjudication. Newcastles complaints procedure could take at least 42

working days (2 months), over twice the 20 working days within which an initial request

should be dealt with. That would be inimical to the requirement of the code that

complaints should be dealt with promptly.

24.The select committee may wish to reiterate that internal reviews should be conducted asquickly as possible and involve no more than a single stage.

February 2012

18 http://www.foi.gov.uk/reference/imprep/codepafunc.htm#partVI

written evidence from the british union for the abolition of vivisection

Documents